FOURTH AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (this "Amendment Agreement") is
dated as of June 26, 2007 by and among Lower Lakes Towing Ltd., Lower Lakes
Transportation Company, Grand River Navigation Company, Inc. ("Grand River"),
the other Credit Parties signatory hereto, General Electric Capital Corporation,
as a US Lender and as Agent, and GE Canada Finance Holding Company, as a Cdn.
Lender.
W I T N E S S E T H :
WHEREAS, the Credit Parties, the lenders party thereto, and the Agent
entered into that certain Credit Agreement dated as of March 3, 2006 and amended
as of August 1, 2006, February 28, 2007 and March 23, 2007 (the "Credit
Agreement"); and
WHEREAS, the Lenders and the Agent have agreed to further amend the Credit
Agreement to effect certain changes thereto requested by the Credit Parties as
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to such terms in the Credit Agreement,
as amended hereby.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
2.1. Annex A to the Credit Agreement is hereby amended effective as of
March 31, 2007 by deleting the definitions of "Capital Expenditures", "EBITDA",
and "Fixed Charges" in their entirety and replacing them with the following:
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of
Indebtedness) by such Person during any measuring period for any fixed
assets or improvements or for replacements, substitutions or additions
thereto, that have a useful life of more than one year and that are
required to be capitalized under GAAP, including all such expenditures
paid pursuant to the WMS Charter; provided, that for the fourth quarter of
Fiscal Year 2007, there shall be excluded therefrom expenditures of
C$9,552,738 by the Credit Parties, to the extent that such expenditures
were made exclusively from the proceeds of a capital contribution made to
one or more of the Credit Parties by Rand Logistics, Inc.
"EBITDA" means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of
such Person for such period, determined in accordance with GAAP, minus (b)
the sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) during such period arising from the sale, exchange
or other disposition of capital assets by such Person (including any fixed
assets, whether tangible or intangible, all inventory sold in conjunction
with the disposition of fixed assets and all securities), (v) any other
non-cash gains that have been added in determining consolidated net
income, in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with
GAAP, but without duplication, (vi) all winter work, Capital Expenditures,
Interest Expense and scheduled principal payments paid pursuant to the WMS
Charter, plus (c) the sum of (i) any provision for income taxes, (ii)
Interest Expense, (iii) depreciation and amortization for such period, (v)
amortized debt discount for such period, and (vi) the amount of any
deduction to consolidated net income as the result of any grant to any
members of the management of such Person of any Stock, in each case to the
extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication.
For purposes of this definition, the following items shall be excluded in
determining consolidated net income of a Person: (1) the income (or
deficit) of any other Person accrued prior to the date it became a
Subsidiary of, or was amalgamated or consolidated into, such Person or any
of such Person's Subsidiaries; (2) the income (or deficit) of any other
Person (other than a Subsidiary) in which such Person has an ownership
interest, except to the extent any such income has actually been received
by such Person in the form of cash dividends or distributions; (3) the
undistributed earnings of any Subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual
obligation or requirement of law applicable to such Subsidiary; (4) any
restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of income accrued during such
period; (5) any write-up of any asset; (6) any net gain from the
collection of the proceeds of life insurance policies; (7) any net gain
arising from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness, of such Person; (8) in the case of a
successor to such Person by consolidation or amalgamation or as a
transferee of its assets, any earnings of such successor prior to such
consolidation, amalgamation or transfer of assets; and (9) any deferred
credit representing the excess of equity in any Subsidiary of such Person
at the date of acquisition of such Subsidiary over the cost to such Person
of the investment in such Subsidiary.
"Fixed Charges" means, with respect to any Person for any fiscal
period, (a) the aggregate of all Interest Expense paid or accrued during
such period, plus (b) scheduled payments of principal with respect to
Indebtedness during such period, plus (c) Taxes paid or payable in cash
with respect to such fiscal period, plus (d) dividends paid in cash in
such period in respect of the Preferred Equity, plus (e) all Interest
Expense and scheduled principal payments paid pursuant to the WMS Charter.
2.2. Annex A to the Credit Agreement is hereby amended effective as of
June 1, 2007 by deleting the definition of "Senior Funded Debt to EBITDA Ratio"
in its entirety and replacing it with the following:
"Senior Funded Debt to EBITDA Ratio" means, with respect to Parent
and its Subsidiaries, on a consolidated basis, the ratio of (a) Funded
Debt as of any date of determination (including the average daily closing
balance of the Revolving Loan for the thirty day period ending on (and
including) the date of determination), to (b) EBITDA for the twelve months
ending on that date of determination.
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3. Conditions to Effectiveness. The effectiveness of this Amendment
Agreement is expressly conditioned upon the execution of this Agreement by the
Credit Parties, the Agent and each Lender and the satisfaction of the following
conditions:
(a) Reaffirmation. Each Credit Party shall have executed and
delivered a Reaffirmation of Guaranty in the form of Exhibit A attached
hereto.
(b) Other Documents. The Borrowers shall provide such other
documents, instruments and agreements as the Agent may reasonably request.
4. Representations and Warranties of the Credit Parties.
4.1. Each of the Credit Parties represents and warrants that the
execution, delivery and performance by each of the Credit Parties of this
Amendment Agreement have been duly authorized by all necessary corporate action
and that this Amendment Agreement is a legal, valid and binding obligation of
such Credit Party, enforceable against such Credit Party in accordance with its
terms, except as the enforcement thereof may be subject to (a) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and (b) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity or
at law).
4.2. Each of the Credit Parties hereby certifies that each of the
representations and warranties contained in the Credit Agreement is true and
correct in all material respects on and as of the date hereof as if made on the
date hereof, except to the extent that any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or
warranty shall be true and correct on and as of such earlier date.
5. Reference to and Effect on the Credit Agreement.
5.1. Upon the effectiveness of this Amendment Agreement, each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import and each reference to the Credit Agreement in each Loan
Document shall mean and be a reference to the Credit Agreement as amended
hereby.
5.2. Except as specifically amended above, all of the terms, conditions
and covenants of the Credit Agreement and the other Loan Documents shall remain
unaltered and in full force and effect and shall be binding upon the Credit
Parties in all respects and are hereby ratified and confirmed.
5.3. The execution, delivery and effectiveness of this Amendment Agreement
shall not operate as a waiver of (a) any right, power or remedy of any Lender or
the Agent under the Credit Agreement or any of the other Loan Documents, or (b)
any Event of Default or Default under the Credit Agreement.
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6. CHOICE OF LAW. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
7. Execution in Counterparts. This Amendment Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
8. Headings. Section headings in this Amendment Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Amendment Agreement for any other purposes.
[signature page follows]
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IN WITNESS WHEREOF, the Credit Parties, the Agent and the Lenders have
executed this Amendment Agreement as of the date first above written.
LOWER LAKES TOWING LTD.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: President
------------------------------
LOWER LAKES TRANSPORTATION COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: President
------------------------------
GRAND RIVER NAVIGATION COMPANY, INC.
By: /s/ Xxxx Xxxx
---------------------------------
Title: President
------------------------------
RAND LL HOLDINGS CORP.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Title: President
------------------------------
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GENERAL ELECTRIC CAPITAL CORPORATION,
as a US Lender and as Agent
By: /s/ Xxxxx L'Homme
---------------------------------
Title: Duly Authorized Signatory
GE CANADA FINANCE HOLDING COMPANY,
as Cdn. Lender
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Duly Authorized Signatory
GE CANADA FINANCE HOLDING COMPANY,
as L/C Guarantor
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Duly Authorized Signatory
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned ("Guarantors") hereby (i) acknowledges receipt of
a copy of the Fourth Amendment to Credit Agreement dated as of June __, 2007
(the "Fourth Amendment"); (ii) consents to the execution and delivery thereof by
the Credit Parties; (iii) agrees to be bound thereby; (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
obligations of the Credit Parties to Agent and Lenders pursuant to the terms of
that certain Guaranty dated as of March 3, 2006 (the "Guaranty"), and (v)
reaffirms that the Guaranty is and shall continue to remain in full force and
effect. Although each of the Guarantors has been informed of the matters set
forth herein and in the Fourth Amendment and has acknowledged and agreed to
same, such Guarantors understand that Agent and Lenders have no obligation to
inform any of the Guarantors of such matters in the future or to seek any of the
Guarantors' acknowledgment or agreement to future amendments or waivers, and
nothing herein shall create such a duty.
This Consent and Reaffirmation shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
principles of conflicts of law.
[signature page follow]
IN WITNESS WHEREOF, each of the undersigned has executed this Consent and
Reaffirmation on and as of the date first above written.
LOWER LAKES TRANSPORTATION COMPANY
By: _________________________________
Title: ______________________________
GRAND RIVER NAVIGATION COMPANY, INC.
By: _________________________________
Title: ______________________________
RAND LL HOLDINGS CORP.
By: _________________________________
Title: ______________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: _________________________________
Title: ______________________________
